der von Felix v. BlueGenesis.com Corporation/Hostopia.com, 2010 HRTO 1597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Harry der von Felix

Applicant

-and-

BlueGenesis.com Corporation/Hostopia.com, Peter Kostandenou, Allison Pantin and Bill Oswin

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: July 23, 2010 Citation: 2010 HRTO 1597 Indexed as: der von Felix v. BlueGenesis.com Corporation/Hostopia.com

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated January 15, 2010. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 14, 2007.

2The purpose of this Interim Decision is to address the respondents’ request for an adjournment of the hearing scheduled for July 30, 2010 and for an order that the applicant be ordered to provide a statement of additional facts and requested remedies and disclosure in accordance with the Tribunal’s Rules and that no further hearing date be scheduled until the applicant has complied with his obligations.

3I will also address certain case management matters in relation to this proceeding.

Request for Adjournment

4By letter dated March 19, 2010, the Tribunal provided confirmation to the parties that the hearing in this matter would proceed on July 30, 2010. This letter also sets deadlines for making disclosure and for filing certain other materials in advance of the hearing, in accordance with Rule 18 of the Tribunal’s Rules for Transitional Applications (the “Transitional Rules”).

5In particular, by no later than April 19, 2010, the applicant was required to deliver to the respondents and file with the Tribunal a statement of any additional facts that he intended to rely upon and a description of the remedies he seeks. In addition, by that same date, the applicant also was required to provide disclosure by delivering to the respondents a copy of all arguably relevant documents in his possession (except where privilege is claimed).

6No such materials were delivered or filed by the applicant by April 19, 2010 or until the date of this Interim Decision. The respondents take the position that they are prejudiced by the applicant’s failure to comply with his obligations under the Transitional Rules, and that it would be in violation of the requirements for procedural fairness to require them to proceed with the hearing in the absence of such compliance.

7Rule 18.1 of the Transitional Rules states that within 30 days after the confirmation of hearing is sent, the applicant “must” deliver to the other parties and file with the Tribunal “a statement of any additional facts the Applicant intends to rely upon” and “a description of the remedies sought”. While this obligation is expressed in mandatory terms, I note that the use of the term “any” additional facts indicates that the applicant may have no additional facts that he intends to rely upon other than those facts set out in the complaint. In transitional applications, where there are no additional facts that an applicant intends to rely upon, it is not uncommon for no statement of additional facts to be filed. In my view, it would be unduly formalistic to interpret Rule 18.1 to require an applicant to file a statement of additional facts in a situation where there are no additional facts.

8Nor is a respondent prejudiced by an applicant’s failure to file a statement of additional facts in such circumstances. Rule 3.4 of the Transitional Rules clearly states that where a fact or issue is not raised in the application or in a supplemental statement of facts, the Tribunal may refuse to allow an applicant to present evidence or make representations about the fact or issue unless satisfied that there would be no substantial prejudice or delay.

9As a consequence, the applicant’s failure to file a statement of additional facts can be taken to mean that he does not intend to rely upon any additional facts other than those set out in his complaint, and if the applicant attempts to introduce evidence relating to facts not set out in his complaint, the respondents may raise such objection at the hearing.

10Rule 18.1 also requires the applicant to file a description of the remedies sought. In the instant case, the applicant set out the remedies that he is seeking in the relevant section of his Application form. Once again, in my view, it would be unduly formalistic to require an applicant to file a further description of the remedies sought, if he is not seeking any remedies beyond what already is set out in the Application form. Again, if the applicant at the hearing seeks a remedy of which he has not provided notice, then the respondents can raise an objection at that time.

11With regard to the applicant’s obligation to make disclosure of all arguably relevant documents, the applicant’s position is that he has already done so. In this regard, I note that with the application as initially filed on the wrong form on February 24, 2009, the applicant filed with the Tribunal a large volume of documents in addition to the application form and complaint. Statements of delivery and accompanying fax sheets indicate that this volume of material also was served on the respondents and counsel. A review of these documents indicates that almost all of them are materials that are in the respondents’ possession and many already also have been filed by the respondents.

12My understanding of the applicant’s e-mail correspondence to the Tribunal is that he has no further disclosure to make other than what already has been provided. If the applicant attempts at the hearing to rely upon any document or material which was not disclosed in accordance with the Tribunal’s Rules, then pursuant to Rule 3.3 the Tribunal may refuse to consider the material or may take any other action it considers appropriate.

13Accordingly, in these circumstances, I am not satisfied that there is any sufficient basis that would justify the adjournment of the hearing in this matter.

Case Management

14In their materials, the respondents have requested that all or part of the Application be dismissed as a result of the decisions of the Employment Standards Officer and the Ontario Labour Relations Board and for failure to disclose a prima facie case.

15The Tribunal will hear submissions from the parties on these preliminary issues at the outset of the hearing on July 30, 2010.